Florida lawmakers are introducing bills on how to implement Amendment 4, which adjusted the Florida Constitution to restore voting rights to felons who'd completed their sentence. But what once seemed like a moment of triumph for civil rights advocates might soon become the prelude to a new legal battle.

The passage of Amendment 4 in November was the culmination of several years of community engagement and grassroots activism. And it paid off: The ballot initiative to restore voting rights to ex-felons passed with nearly 65% approval, a heralded outcome in a state known for its razor-thin margins of electoral victory.

Now, activists' excitement over Florida voters' endorsement of Amendment 4 has given way to fears the change it promised might be snuffed out before it can even begin. Last week, the Florida Senate mulled SB 7086, its bill on how to enforce the provisions of Amendment 4. Like the House bill advanced before it, the Senate counterpart drew criticism for adding obstacles for ex-felons looking regain the right to vote.

Although the initiative Floridians voted on held that “the amendment would not apply to those convicted of murder or sexual offenses,” the Senate's bill narrows the beneficiaries of Amendment 4 by including “an attempt to kill a human being” within its definition of murder. Both Senate and House bills contain language necessitating the complete payment of costs associated with incarceration. The House bill specifically requires felons to pay off accumulated court costs and fees, along with restitution, if they're looking to vote.

Although the bills have yet to become Florida law, many activists and attorneys are mulling over the possibility of further litigation on the matter.

“It does depend on what comes out of the Legislature,” said Equal Justice Under Law founder Phil Telfeyan. Before establishing the nonprofit, Telfeyan worked for four and a half years as a trial attorney with the Department of Justice's Civil Rights Division. He noted it's “premature” to commit to the idea of taking the issue to court, but said, “Litigation under equal protection and due process is possible, given what the Legislature seems to be considering.”

“The current legislation would effectively bar re-enfranchisement. … And I view that as a wealth-discrimination problem,” Telfeyan said. “If you look at publicly available data from the state of Florida, an enormous percentage of fines and court debt is considered by the state to be uncollectible or minimally collectible.” As shown in the Florida Court Clerks & Comptroller's 2018 Annual Assessments and Collections Report, many of the fees levied against those who pass through the system remain uncollected.

Read the controversial house bill: 

|

Wealth Gap

Telfeyan said low-income individuals are disproportionately burdened  by court costs and fees, creating viable arguments against the proposals under the due process and equal protection clauses.

“The U.S. Supreme Court had said [courts] can't condition someone's freedom on their poverty,” Telfeyan said, citing the high court's ruling in 1983's Bearden v. Georgia. “Due process and equal protection clauses prohibit a state from irrationally discriminating on the basis of wealth.”

Because Amendment 4 was adopted into the state constitution, it's arguable that legislation limiting its effects constitutes a violation of the state's Constitution, said Chiraag Bains, the director of legal strategies with Washington, D.C.-based advocacy group Demos. Bains said the language employed in the legislation adds challenges to regaining the right to vote that were not present in the original ballot initiative.

“There are some ways in which the bills are contradictory to Amendment 4 on their face,” Bains said. “Attempted murder and manslaughter within the definition of murder is surely not what the supermajority of voters intended when they voted for the amendment. … I think you'd be hard-pressed to find people who think attempted murder means murder. I'm a former prosecutor — this stuff matters. To try to expand the definition of murder … I think there's a strong argument that's contrary to the language of the state constitution at this point.”

Kirk Bailey, the political director of the ACLU of Florida, said the bills as they stand are “too broad” and “swoop up too many individuals.”

“They have the effect of disenfranchising, frankly, whole classes of people,” Bailey said. As for the bills' requirement that ex-felons pay off all fees before regaining the right to work, he said it's the ACLU of Florida's position that once a payment “converts to civil lien, it's no longer a criminal penalty.”

“Therefore, it should not be required to be fully paid before a person is deemed to have fully completed their sentence,” Bailey said.

“We are closely monitoring [the bills] and we would explore all options to ensure that the amendments are implemented according to the will of Florida voters,” Bailey said. “The central hook of any conversation or discussion is the plain language of the whether [the legislation] comports with the language of the amendment. Because if it didn't, the obvious claim is it's unconstitutional under the Florida Constitution as it's currently written.”

The attorneys stressed if there is litigation over Amendment 4's implementation, any argument presented has to center around those it stands to affect the most.

“I don't think it's helpful when organizations just do their own thing and file lawsuits untethered to the reality on the ground,” Bains said. “That's going to be important in how to frame any litigation. … We'd be working closely with advocates on the ground and impacted communities, and centering their experience in the litigation. It's important for courts to understand what's at stake.”

Related stories: